What are the Characteristic Features of a Hindu Coparcenary?

(7 Features) The following are the characteristic features of a Hindu coparcenary: (i) Formation: (This has already been discussed above.) (ii) Creature of law: A Hindu coparcenary is a pure creature of law. It cannot be created by an act of parties, except in the case of an adoption, whereby a stranger is introduced into the family. Thus, if a joint family consists of X and his deceased brothers wife, W, and W adopts a son, such a son will become a coparcener with X. (iii) Exclusion of females: Before the 2005 Amendment, no female could be a coparcener, although she could be a member of a joint Hindu family. Even a wife who was entitled to be maintained out of her husbands property (and had, to that extent, an interest in his property) was not her husbands coparcener. (iv) Extinction when complete: A coparcenary cannot be said to be extinct till the death of the last surviving coparcener. Thus, as long as there is even a single coparcener, the coparcenary continues. Even on the death of the sole surviving coparcener, the family cannot be said to be at the end, as long as there is a potential mother, i.e., a female member who can introduce a new male member by birth or by adoption. (Approvier v. Rama Subba, 11 M.L.A. 75) (v) Unity of ownership and possession: The most characteristic feature of a Mitakshara coparcenary is the unity of ownership and possession of joint family property among its coparceners. Both the ownership and possession of the coparcenary property is in the whole body of the coparceners. According to the true notion of a joint family under the Mitakshara Law, no individual member of the undivided family can predicate that he has a definite share (say, one-third or one-fourth) of the joint undivided family. His interest is a fluctuating one, which is liable to be enlarged by deaths in the family, and diminished by births in the family. It is only on a partition that a member becomes entitled to a definite share of the property. His interest in the coparcenary property before a partition can best be described as his undivided coparcenary interest. As observed by the Privy Council in Katama Natchairv. The Rajah of Shivagunga (1893 9 M.I.A. 539), there is community of interest an d unity of possession between all the members of the family.

(vi) Coparcenary between Collaterals: Prior to the passing of the Hindu Succession Act in 1956. sons and grandsons whose father was dead, and great-grandsons whose father and grand-father were both dead, succeeded simultaneously as a single heir to the separate or self-acquired property of the deceased with the right of survivorship, and such property would become ancestral property in their hands. However, after the passing of the said Act, the position is different, because S. 19 of that Act expressly provides that if two or more heirs succeed together to the property of an intestate, they take such property as tenants-in-common, and not as joint tenants. In other words, such heirs take the property without a right of survivorship, and they would not constitute a coparcenary. (vii) Unity of juristic existence: Another salient feature of a Mitakshara coparcenary is unity of juristic existence. The internal constitution of a coparcenary may change on account of births, deaths or adoptions, but as regards outsiders, it is always deemed to be a separate legal entity. It is a distinct juristic person on whose behalf contracts can be entered into and enforced. (Shankar Lai v. Toshan Pal Singh, A.I.R. 1934 All. 533) In State Bank of India v. Ghamandi Ram (A.I.R. 1969 S.C. 1330) the Supreme Court observed that coparcenary property is held by the coparceners in a quasi-corporate personality. In the same case, the Court has listed the following as the incidents of a Mitakshara coparcenary: (i) Firstly, the lineal male descendants of a person upto the third generation acquire, on birth, ownership in the ancestral properties of such a person. (Now, i.e., after the 2005 Amendment, even females acquire such an interest.) (ii) Secondly, such descendants can, at any time, work out their rights, by asking for a partition. (iii) Thirdly, till such a partition, each member has got ownership extending over the entire property, jointly with the other coparceners. (iv) Fourthly, as a result of such co-ownership, the possession and enjoyment of the properties is common. (v) Fifthly, no alienation of the property is possible without the concurrence of the coparceners, unless it is for a necessity. (vi) Lastly, the interest of a deceased member passes, on his death, to the surviving coparceners.

What are the Characteristic Features of Mitakshara Coparcenary? Characteristic features of Mitakshara Coparcenary are as follows: In State Bank of India v. Ghamandi Ram, the Supreme Court observed: A coparcenary under the Mitakshara School is a creation of law and cannot arise by act of parties except in so far that on adoption the adopted son becomes a coparcener with his adoptive father as regards ancestral properties of the latter. The incidents of coparcenership under Mitakshara law are: (i) First, the lineal male descendants of a person upto third generation, acquire on birth ownership in the ancestral properties of such person, (ii) Secondly, that such descendants can at any time work out their rights by asking for partition; (iii) Thirdly, that till partition, each member has got ownership extending over the entire property conjointly with the rest; (iv) Fourthly, that as a result of such co-ownership the possession and enjoyment of properties is common; (v) Fifthly, no alienation of the property is possible unless it be necessity, without the concurrence of the coparceners; (vi) Sixthly, that the interest of the deceased member lapses on his death to the survivors; The following are the characteristic features of the Mitakshara coparcenary: (1) Unity of Ownership: The essential feature of a Mitakshara coparcenary property is unity of ownership, i.e., the ownership of property is not vested in a single coparcener. It is vested in whole body of coparcenary. According to the true notion of an undivided family governed by the Mitakshara law, no individual member of that family whilst it remains undivided, can predicate, of the joint and undivided property, that he has a definite share. In Thammavenkat Subbamma v. Thamma Ratamma, the Supreme Court affirming the above view held that the essential feature of Mitakshara coparcenary is unity of ownership and community of interest. No coparcener has any definite share in the coparcenary property although his undivided share is existent there, which increases with the death and decreases with the birth of any coparcener. The coparcener acquires an interest in coparcenary property by birth, which is equal to that of his father.

(2) Indeterminability of Shares: The interest of a coparcener in the coparcenary property is a fluctuating interest which is liable to diminish with the birth and bound in increase with the death of any coparcener in the family. So long the family remains united; no individual coparcener can predicate that he has a definite share in the property of the family. In Commissioner of Gift-tax v. N.S. Getty Chettiar, the Court upholding the above view held that so long the family remains undivided; no individual coparcener can claim any specific share in the joint family property. All the coparceners are the owners of entire joint family property. Their shares can be specified only after the partition is effected in the joint family. The share of any coparcener is thus unpredictable and unspecified before partition. Recently, in Munni Lal Mahto and others v. Chandeshwar Malito and others, the Court upholding the above view held that if any coparcener of joint Hindu family transfer the coparcenary property by way of gift without consent of other coparceners, it is void, because all the coparceners are the owners of entire joint-family property and joint family continues, and the coparcenary interest is an indeterminate. It becomes determinate only when the states of jointness is broken. (3) Community of Interest: There is community of interest in the coparcenary property. The moment a person is born in the family, he acquires an interest in the coparcenary property in the sense that he has a right of common enjoyment and common use of all the properties, because as soon as he is born as a son, he assumes the membership of the community. It also signifies that no coparcener is entitled to any special interest in the coparcenery property, nor is he entitled to exclusive possession of any part of the property. As it has been rightly observed by the Privy Council that there is community of interest and unity of possession between all members of the family. No coparcener can say with certainty that he is entitled to one half or one fourth as it is the essence of coparcenary property that there is community of interest and unity of possession. The shares of individual coparceners cannot be defined. All the coparceners have a right of common enjoyment or common use of the property. It signifies two implications: firstly, possession of one coparcener in the possession of all coparceners, and secondly, no coparcener has a right of exclusive possession of any portion of joint property. (4) Exclusion of Females:

In Mitakshara coparcenary no female can be its members, though they are members of joint family. Even the wife who is entitled to maintenance enjoys only the right to maintenance but she can never become a coparcener. Thus a female does not have the right to demand partition. Since she is not a coparcener, she cannot become the Karta of the family. An alienation of the property of the joint family by her will not be binding on her sons and daughters. The alienation of her own share is not binding upon herself. It is worthwhile to mention that the Hindu Womens Right to Property Act, 1937, conferred a special status on the widow and made them eligible to inherit the coparcenary interest along with her sons, although she took it as a limited estate. Thus she acquired the status like that of coparcener entitled to a share, equal to that of her sons. For example, A who constitutes a coparcenary with his two sons, namely, and C, dies leaving behind his widow, W, two sons, and C. Under the Hindu Womans Right to Property Act, 1937, W inherited the coparcenary property along with and and would get 1/3 share each. (5) Devolution by Survivorship: One of the distinctive features of coparcenary is that the coparcenary interest of a coparcener in coparcenary property on his death does not devolve on his heirs by succession but on the other hand it passes by survivorship to the other coparceners. Thus right by birth and right of survivorhsip are necessary incidents of community of interest and unity of ownership, which signify joint possession not an exclusive possession. (6) Right of Maintenance: All the members of coparcenary are entitled to maintenance by birth out of joint family property. They continue to enjoy this right so long the coparcenary subsists. Where any member fails to get any share on the coparcenary property even after partition he retains the right of maintenance. Some special provisions have to be made for them at the time of partition. Female members and other male members who do not get a share on partition such as unmarried daughters, idiots or lunatics, are entitled to maintenance out of joint family property. Unmarried daughters have a right to be married out of joint family funds. Where a coparcener married under Special Marriage Act, 1954, he is separated from coparcenary. He can form separate coparcenary along with his male descendants.

COPARCENARY: MITAKSHARA vs DAYABHAGA The following are the features: 1. How long has the Coparcenary arise: DAYABHAGA - no right by birth as on Coparcenary.After the death of Father, his sons constitute a Coparcenary. MITAKSHARA- Right by birth. 2. Nature of interest: DAYABHAGAthere is a defined interest. it does not pass by survivorship.

MITAKSHARA- Coparcener share is not defined.it fluctuate by birth and death of coparcener. 3. Expansion of Coparcenary: DAYABHAGA- On the death of one of his heirs becomes coparceners. MITAKSHARA- only males can be coparceners. 4. Alienee's right to ask for partition: DAYABHAGA- any equity is held for an Alienee for a suit of partition. Can ask for a joint possession with coparcener. MITAKSHARA- there is no definite share for an Alienee, but he may file a suit for the partition. hence suit is the only appropriate remedy. 5. Persons entitled to partition: DAYABHAGA- The law does not confer on SON a right of birth hence he has no right for partition against the Father. MITAKSHARA- SONS can institute a suit of partition even against the Father.

What is the difference between Mitakshara and Dayabhaga schools of law? The difference between Mitakshara and Dayabhaga are : Mitakshara 1. The son gets a right by birth in the joint family property. In case he is adult, he can demand partition even during the life time of his father. 2. He has a say and can prevent his father from unauthorised alienation of ancestral properly. 3. A coparcener has no right to alienate his share in the joint family property. On his death without male issue, his interest survives to his brother. 4. The widow of the deceased coparcener cannot enforce partition. She has a right of maintenance.

5. The essence of a coparcenary is unity of ownership. Dayabhaga 1. He has no right in the joint family property so long as his father is alive. 2. The father is absolute owner of the property and can deal with it the way he likes. 3. Each adult member male or female has a right to demand partition and can alienate his/her interest and on death his/her share will be inherited by his her heirs. 4. The widow becomes a coparcener with her husband's brother and can demand partition. 5. The essence is unity of possession and not ownership.